"I think I was trying to suggest something about the duality of man, sir ... the Jungian thing, sir."
Private Joker, Full Metal Jacket

Monday, June 16, 2014

Reaching across the fence Monday

In honor of yesterday's celebration of Father's Day (warning; picture of me looking like one of the heavies on Miami Vice) and this week's arrival of summer, let's make some softer observations.

Yesterday's Journal Sentinel had a profile on Chris Ahmuty of the ACLU. Have only met him once; seemed like a nice guy. I don't always disagree with the ACLU. i think that they have a left wing view of civil rights that tends to privilege equality over liberty. I sometimes refer to WILL as the anti-ACLU, but that's not quite right, We agree on a variety of, in particular, First and Fourth Amendment issues.

In any event, some of the comments complained about the Journal Sentinel doing a "puff piece" on a liberal. The paper would never do that for a conservative.

It would be less than gracious for me not to point out that it has done at least one - of me. I think that's what Bill Glauber does; he tries to present people on their own terms. You can call these puff pieces but I think there's some value in that. It probably does conservatives good to see that, say, Chris Ahmuty is not a monster. It's good for liberals to see that I'm not either. (At least not all the time.)

In another article, liberal lawyer Lester Pines said that attorney general candidates who said that they would not defend laws that they thought were unconstitutional were wrong. An attorney general should decline to defend state law only if he or she thinks that the argument in favor of a law's constitutionality is frivolous.

I have debated Lester on a number of things and been on opposite sides of litigation a few times. I like him. I disagree with him a lot. Here - he's right.

Let's use an example to illustrate the difference. Say the state passed a law that eliminated the privilege against self incrimination or that allowed local district attorneys to bring actions to prohibit or punish "offensive" speech. No reasonable lawyer could conclude that these laws might be constitutional. An attorney general should not defend them.

But states rarely pass such laws. People should understand that an AG is not free to pick and choose which laws she'll defend. She will, from time to time, have to defend laws that she disagrees with.

In fact, refusing to defend a law can create unanticipated problems. Say you are in favor of extending civil marriage to same sex couples. You believe that the refusal to do so is unconstitutional. Don't you wish that the United Supreme Court had resolved that issue?

It might have resolved it a year ago in the challenge to California's ban of same sex marriage, but it could not. It could not because the California attorney general and Governor would not defend and the Court did not believe that anyone else had standing to do so. I think the latter decision was wrong but it is quite possible that the issue could have been resolved a year ago - perhaps in favor of same sex marriage - had the elected officials of California done their job.

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About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.